Paragraph 4 of 5

Sentence 3 of 6

As always, you can find the Dobbs v. Jackson decision here.

Next we have a sentence that contains a single claim and which references only one source, so this should be uncomplicated:

“The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’ Geduldig v. Aiello, 417 U. S. 484, 496, n. 20 (1974).”

This argues that the only condition in which “heightened constitutional scrutiny,” which was mentioned in the last sentence and references the Sessions v. Morales-Santana decision, is necessary in a sex-discrimination context is if the regulation in question is a cover for “invidious discrimination.” Here’s Merriam-Webster’s entry on “invidious” for clarity:

I have to imagine that of those meanings, the Court intends 1 b to be the danger. Merely arousing an emotional reaction wouldn’t seem a good foundation for legal decisionmaking. Harm, on the other hand, definitely is.

Here is the relevant passage in Geduldig, beginning (as the citation indicates) on page 496 in footnote 20:

“The dissenting opinion to the contrary, this case is thus a far cry from cases like Reed v. Reed, 404 U. S. 71 (1971), and Frontiero v. Richardson, 411 U. S. 677 (1973), involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender, but merely removes one physical condition—pregnancy—from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, supra, and Frontiero, supra. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.

“The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups — pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.

This is interesting even beyond the Dobbs decision or the abortion debate generally. Our discourse about sex and gender has changed a lot since Geduldig was decided in 1974. Now we wrestle not with a distinction between “ pregnant women and nonpregnant persons” but between pregnant persons and nonpregnant persons. The inclusion of transgender people in the discussion actually simplifies this debate.

But the bottom line, as far as this analysis is concerned, is that the claim is true:

UPDATE 7/12/23: I don’t know where my head was when I did this one. This claim needs support to be established as true. It is undetermined.

“The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other’.“

The claim is made in Geduldig. Whether that claim is well supported by the argument in Geduldig or by precedents Geduldig cites is a deeper question.

Decisions cited in the Geduldig passage:

• Reed v. Reed, 404 U. S. 71 (1971)
• Frontiero v. Richardson, 411 U. S. 677 (1973)